AMERICAN INDIAN RELIGIOUS FREEDOM ACT TUESDAY, MARCH 16, 1993 HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON NATIVE AMERICAN AFFAIRS, COMMITTEE ON NATURAL RESOURCES, The subcommittee met, pursuant to call, at 9:35 a.m., in room 1324, Longworth House Office Building, Hon. Bill Richardson (chairman of the subcommittee) presiding. OPENING STATEMENT OF CHAIRMAN BILL RICHARDSON Mr. RICHARDSON. The subcommittee will come to order. Good morning. Today's hearing is the second oversight hearing the subcommittee will hold on the effectiveness of the American Indian Religious Freedom Act of 1978. In 1988, the Supreme Court held in the Lyng case that the American Indian Religious Freedom Act did not confer a cause of action to Indians for the protection of religious sites from Federal land management decisions and therefore could not be used by Indians to challenge such decisions. In 1990, the Supreme Court further frustrated Native Americans in the case of Smith when it, in essence, threw out the long-standing practice of courts that in order for the Government to restrict or curtail an individual's right to religious practice, the Government had to show it had an overriding "compelling interest" to do So. In the hearing held on February 23, the subcommittee received testimony focused on land access and sacred site preservation issues. This morning, we will hear from several tribal and religious leaders on concerns relating to access and availability of sacred objects and the rights of Native American prisoners to practice their religion while incarcerated. At present, no legislation amending the American Indian Religious Freedom Act is before the subcommittee and no decisions have been made as to what amendments should look like. We are willing to look at all proposals at this time. I encourage anyone who is interested to submit testimony for the official record, which will remain open for two weeks for this pur pose. For our witnesses today, your entire statements will be made a part of the permanent record, and we will be asking you to summarize in five minutes your prepared remarks. (1) At this time, I ask that the Background be made part of the record. [Background information follows:] BACKGROUND FOR OVERSIGHT HEARING HISTORY In 1978, Congress enacted the American Indian Religious Freedom Act, which states: "Henceforth it shall be the policy of the United States to protect and preserve for American Indians their inherent right of freedom to believe, express, and exercise the traditional religions of the American Indian, Eskimo, Aleut, and Native Hawaiians, including but not limited to access to sites, use and possession of sacred objects, and the freedom to worship through ceremonials and traditional rites." (P.L. 95-341; 42 USCS 1996). During debate on the Act the Chairman of the then House Interior and Insular Affairs Committee, Representative Morris Udall, stated that the Act has "no teeth". To the chagrin of many Native American religious leaders and practitioners, that quote has been repeated consistently in reference to the Act. In Lyng v. Northwest Indian Cemetery Protection Association (1988), the Supreme Court held that the American Indian Religious Freedom Act (AIRFA) did not confer a cause of action to Indians for the protection of religious sites from federal land management decisions and, therefore, could not be used by Indians to challenge such decisions. The Court further held that under the Free Exercise Clause of the Constitution, the government could not be prevented from destroying sites held sacred by Indians and necessary to the practice of traditional religious ceremonies because the Clause as written is in terms of what the government cannot do to the individual and not in terms of what the individual can extract from the government. The Court's decision meant that the action in this case of the Forest Service to allow logging and to build a logging road in the area of an Indian cemetery was not unconstitutional because, (1) AIRFA did not confer a cause of action and, (2) the Forest Service was not forcing an individual to act in opposition to his or her religious beliefs. A second Supreme Court decision has raised additional concerns in Native as well as non Native religious communities. In Employment Division of Oregon v. Smith (1990), the Supreme Court abandoned the practice used by courts for 30 years that in order for the government to restrict or curtail an individual's right to practice his or her religious freedom, the government had to show that it had an overriding "compelling interest" (such as the public's health and safety) to do so. The Court held that as long as the government was applying a law generally to the public and not targeting a specific religious group, the government did not have to demonstrate a compelling interest. PURPOSE OF HEARING The Subcommittee has received voluminous correspondence lending to the belief that the American Indian Religious Freedom Act has become little more than a statement of policy directing federal agencies to consider the views of Native American religious leaders when making land management decisions. Numerous tribes have expressed frustration and concern over their inability to protect their most sacred sites and practices. The Supreme Court cases named above have only exacerbated the situation. Several tribal and religious leaders will testify before the Subcommittee on their views and experiences regarding the effectiveness of the American Indian Religious Freedom Act. Mr. RICHARDSON. Before I call the first panel, I would like to recognize the ranking minority member, Mr. Thomas of Wyoming. OPENING STATEMENT OF HON. CRAIG THOMAS Mr. THOMAS. Thank you, Mr. Chairman. I don't have a prepared statement. I am pleased to participate in this second hearing. I guess I would like to suggest that you and all of us begin to look at some remedies. It is important, of course, to preface it with what the difficulties are, what the experiences have been, with what we currently have. But it seems to me, there is a limit to how much value there is in that, and there ought to come a time soon when we say, "Here's the experience; here's what we think we ought to do about it," and start to recommend some specific remedies. I think that would be useful. Thank you, Mr. Chairman. Mr. RICHARDSON. I thank the gentleman. The gentleman from South Dakota. OPENING STATEMENT OF HON. TIM JOHNSON Mr. JOHNSON. Thank you, Mr. Chairman, and again I commend you for holding the hearing and providing some badly needed leadership relative to Native Americans in general and certainly on this religious rights issue. I regret that I will not be able to stay for the duration of the hearing. I have overlapping hearings, including one that meets shortly, that I am going to have to attend and participate in. But this is an important follow-up hearing on a prior hearing we held on this issue. I want to especially welcome Mr. Bud Johnston of the Pipestone Indian Community of Sioux Falls, South Dakota, and I am looking forward to reviewing his testimony. But I think all the panel members are excellent and will contribute, I think, in a substantial way. Again, one of the ongoing concerns that I have and I think that I share with other members of this panel is that, on the one hand, we want to do what we can to assure the right of religious practice for all peoples. On the other hand, there is a certain amount of balancing that goes on. I note, for instance, in some proposals that areas that are tens of thousands of square miles would be denominated a religious site. Unlike the Lyng case, which dealt with logging near a very specific cemetery area, when thousands of square miles are designated a religious site, then we have questions about what kind of litigation and what kind of participatory process is involved, the decisions dealing with logging and mining and recreation development, and all the other multiple uses that the national forests in particular are used for. That kind of balancing is something that no doubt we are going to have to deal with. But I am looking forward not only to this additional background and the problems we face, but as the gentleman from Wyoming notes, moving on hopefully to deal with some specific remedies that may accommodate all parties. Thank you, Mr. Chairman. Mr. RICHARDSON. I thank the gentleman. For the first panel, I would like to ask Mr. Gene Haislip, Deputy Assistant Administrator, Office of Diversion Control, from the DEA in the Department of Justice. Mr. Haislip, let me say that on behalf of our subcommittee and the staff, we want to thank you for your cooperation as we initiated this hearing and your good work in cooperation with the Native American Church. Let me say that from the beginning, you and your office have been very responsive. I look forward to your statement. As I said earlier, we would appreciate your summarizing it. The full statement is inserted in the record. Please proceed. STATEMENT OF GENE R. HAISLIP, DEPUTY ASSISTANT ADMINISTRATOR, OFFICE OF DIVERSION CONTROL, DRUG ENFORCEMENT ADMINISTRATION, U.S. DEPARTMEN OF JUS TICE Mr. HAISLIP. Thank you, Mr. Chairman and members of the committee. I am pleased to have this opportunity to appear before you. I will try to summarize my statement very briefly. I am here to comment on one specific matter of interest, and that is the use of the cactus called peyote in certain religious practices of the Native American Church. First let me say that this cactus, peyote, contains an active principal called mescaline, which is a powerful hallucinogenic drug. As such, the cactus is classified as a Schedule 1 substance under the Federal Controlled Substances Act, which I am responsible for administering. This simply means that there is no legitimate medical use for the drug and it cannot normally be consumed for any legal purpose other than research. It grows only in the State of Texas, by the way, and we have on a few occasions actually seen some illicit traffic in this cactus. But I think it is important to point out that for a great many years, more than we know, it has been also used as a religious article or sacrament or in a manner as to facilitate certain religious rights of American Indians, particularly in the southwestern United States, and today that is represented by the practices of the Native American Church, which uses this cactus for religious purposes. We have provided under our law, since the very first enactment when this cactus was brought under drug controls, a special exception within the Federal regulations to permit this particular type of non-medical use because of the fact that it does. represent a traditional religious practice among certain Native American peoples, especially as they are now represented by the Native American Church. I would like to say that we have been cooperating with this Native American Church and its members for a great many years. We have had no complaints from them, that I am aware of, with regard to our administration and our practices under this regulation, and by the same token, we have no complaints of their practice as well. I should point out that on occasion we have seen others, non-Native American individuals, sometimes seek to obtain access to this or other similar drugs, claiming religious practice where they have no such bona fide claims in fact and no affiliation whatsoever with the Native American Church. We have always denied such claims as unjustified and really taking advantage of the legitimate practices of members of the Native American Church, and that is the only problem that we have encountered with administering our law. We have had no problems whatsoever with those legitimate members of the church, and I would like to think that they have had no problems with our administration of the law as well. Mr. Chairman, that really concludes a brief summary of my statement. I think these are the salient points, but if you have some specific questions with regard to our policy or practices or experiences, I would be more than happy to try to answer them for you. Thank you. [Prepared statement of Mr. Haislip follows:] STATEMENT OF GENE R. HAISLIP, DEPUTY ASSISTANT ADMINISTRATOR, OFFICE OF DIVERSION CONTROL, DRUG ENFORCEMENT ADMINISTRATION Chairman Richardson and Members of the Committee: Thank you for this opportunity to appear before you to discuss the experience of the Drug Enforcement Administration (DEA) enforcing the Controlled Substances Act (CSA) as regards peyote, and implementing 21 CFR 1307.31 relating to the Native American Church (NAČ). Peyote is a cactus whose primary active ingredient is mescaline, a drug which produces hallucinogenic effects similar to those of LSD in the user. Along with a number of other hallucinogenic drugs, peyote (mescaline) has on occasion been found in the illicit traffic. Although in recent years DEA and state and local law enforcement agencies across the country have reported a resurgence in the trafficking in and abuse of LSD, the same cannot be said for peyote. Nor has the abuse problem with peyote historically ever approached the magnitude or prevalence of LSD. That any abuse and trafficking problems with this drug have been negligible in recent years attests to the fact that the CSA controls have worked well for peyote. Despite the fact that Federal regulation allows for the legal use of this drug in specific circumstances and indeed for the registration of legitimate distributors, DEA is not aware of diversion of this drug to any illicit market at this time. As with any Schedule I controlled substance, peyote has no currently accepted medical use. In hearings on the CSA over 20 years ago, Congress decided that the traditional, historic use of peyote by the NAC as a sacrament in traditional religious ceremonies for many generations warranted a specific exemption. Congress determined, consistent with past Federal practice regarding the issue, that it should be addressed in the regulations rather than the law. |